State v. Leabo

• Decision Date: 21 June 1886
• Citation: 1 S.W. 288,89 Mo. 247
• Parties: The State v. Leabo, Appellant
• Court: Missouri Supreme Court

1 S.W. 288

89 Mo. 247

The State v. Leabo, Appellant

Supreme Court of Missouri

June 21, 1886

Appeal from Bates Circuit Court. -- Hon. James B. Gantt, Judge.

Affirmed.

Holcomb & Silvers for appellant.

(1) The defendant was entitled to a special venire. He made timely application for it, accompanied with his affidavit. R. S secs. 2802, 3894; Samuels v. State, 3 Mo. 68; State v. Jones, 61 Mo. 232; Fulweiler v. St Louis, 61 Mo. 479. (2) In determining the competency of jurors the court erred in permitting them to be examined on their voir dire, against the objection of defendant, as to whether they would convict of murder in the first degree upon circumstantial evidence alone. The court is asked to overrule State v. West, 69 Mo. 401, on this point. The oral definition or instruction of the prosecuting attorney and the court defining circumstantial evidence was erroneous and should not have been given. The court can only declare the law by written instructions. (3) The court erred in permitting the state to introduce expert testimony in regard to the condition in which the body of Mrs. Leabo was found on the second post mortem, held December 28, eight days after the first examination was made. This examination was ex parte. Whar. Crim. Ev. [8 Ed.] secs. 421, 422; 2 Whar. and S Med. Jur., part 2, sec. 1246; Rogers' Expert Testimony, p. 20, sec. 14. (4) The instructions were all erroneous, except the seventh, as there was no sufficient evidence offered against the defendant to rest a verdict of guilty upon. (5) The first instruction directs the jury to find a verdict of guilty, if they believe from the evidence that the defendant first choked his wife to death and then drowned her in a well. This is an absurdity. Wood v. Steamboat, 19 Mo. 529; Young v. Ridenbaugh, 67 Mo. 574; Belt v. Goode, 31 Mo. 128; Clark v. Kitchen, 52 Mo. 316; State v. Simms, 68 Mo. 305. (6) All the instructions asked by defendant should have been given. (7) Error was committed in allowing the prosecuting attorney to refer in his closing argument to the verdict of the former jury that had tried and convicted defendant. R. S., sec. 1965; State v. Cooper, 45 Mo. 64; State v. Alexander, 66 Mo. 148; State v. Lee, 66 Mo. 168; State v. Kring, 64 Mo. 591; State v. Johnson, 76 Mo. 121. (8) The verdict was contrary to the evidence and was erroneous. State v. Packwood, 26 Mo. 340; State v. Daubert, 42 Mo. 242.

B. G. Boone, Attorney General, for the state.

(1) The application for a special venire was properly overruled, because it did not comply with Revised Statutes, section 2802, in not being made a sufficient length of time before the case was called for trial. Rose v. St. Charles, 49 Mo. 509. The court would not have been authorized in granting the order for a special venire simply on the naked affidavit of defendant. State v. Wisdom, 84 Mo. 185. (2) The definition of circumstantial evidence by the trial court was correct. It was as follows: "Circumstantial evidence is that kind of evidence in which the fact to be proved is not directly attested by those who speak of it from their own actual and personal knowledge of its existence, but it is to be inferred or proved from the existence of other facts satisfactorily established. The circumstances proved should establish defendant's guilt beyond a doubt, and point so clearly to his guilt as to exclude every other reasonable hypothesis." 1 Bouvier's Law Dic. [12 Ed.] title Evidence, 545; Burrill Cir. Ev. [2 Ed.] pp. 7, 8, 77; Com. v. Webster, 5 Cush. 295; Howard v. State, 34 Ark. 440; Eberhardt v. Sanger, 51 Wis. 78; Com. v. Sturtivant, 112 Mass. 122; vide the charge to the jury by Wells, J., in the Sturtivant case in appendix to Wharton on Homicide [2 Ed.] 745. (3) No error was committed in challenging members of the panel from which the trial jury was selected who answered that they would not find one, accused of murder, guilty, on circumstantial evidence alone. State v. West. 69 Mo. 401; State v. Mann, 83 Mo. 589. (4) The testimony of the physicians who made the second examination of Mrs. Leabo's body was competent. There is nothing to indicate that it was not a fair and impartial autopsy, and its accuracy or authoritativeness could not have been enhanced by notice to the defendant. Whar. on Crim. Ev. [8 Ed.] sec. 421; State v. Bowman, 80 N.C. 432; Boyle v. State, 61 Wis. 447; 2 Whar. and Stil. Med. Jur., part 2, sec. 1247; Rogers' Expert Testimony, sec. 14. The witnesses who testified as to the wounds on the neck were all medical men, and their testimony was admissible, whether defendant had notice of the autopsy or not. Whar. Crim. Ev., sec. 412; Ebos v. State, 34 Ark. 520; State v. Porter, 34 Iowa 131; Waite v. State, 13 Tex.App. 180, and cases cited. (5) Instruction number one on the part of the state was approved by this court when this case was here before. State v. Leabo, 84 Mo. 177. The other instructions on the part of the state were correct. The six instructions asked by defendant and refused were properly refused. (6) The remarks made by the prosecuting attorney were not improper under the circumstances. They were not objected to at the time, nor were exceptions saved thereto. They do not come within the meaning of Revised Statutes, section 1965. State v. Hayes, 81 Mo. 576.

OPINION

Henry, C. J.

This is the second time this cause has been in this court on defendant's appeal. He was tried and convicted of murder of the first degree at the June term, 1884, of the Bates circuit court, and on appeal to this court the judgment was reversed and the cause remanded, at the October term, 1884. State v. Leabo, 84 Mo. 168.

The facts are detailed in the opinion delivered then, and it is not necessary to repeat them here. The evidence at the last trial was not materially different from that adduced on the former trial. The November term, 1885, of the Bates circuit court commenced on the second day of November. Seven days thereafter both the state and the accused announced themselves ready for trial, and the court ordered the sheriff to summon one hundred and twenty-five good and lawful men to be and appeal in court at noon the following Wednesday, eleventh day of November. On the same day that the sheriff was ordered to summon a jury the defendant filed his motion for a special venire and that the same be summoned by the coroner, alleging that the sheriff was so prejudiced against him that he would not impartially serve the writ and return impartial jurors. This he verified by his affidavit. The court overruled his motion, and this is assigned as error. Section 2802 provides that, either party in a civil or criminal cause triable by jury, "shall be entitled as of course to an order for a special venire on motion made therefor three days before that on which the case is set for trial." The same section gives the court discretion as to the taxation of the costs of such special jury.

Regarding defendant's motion as simply one for a special venire, it was not made three days before that on which the case was set for trial, but on that day, and, therefore, the court had a discretion to make the order or not, with which this court cannot interfere. If it had been made in due time, the court, under section 2802, would have had no discretion and would have erred if it had refused the application. But the motion also alleged that the sheriff was so prejudiced against the defendant that he would not impartially summon jurors in the case. Section 3894 provides that the coroner of the county "shall serve and execute all writs and precepts and perform all other duties of the sheriff when the sheriff shall be a party, or when it shall appear to the court out of which the process shall issue, or to the clerk thereof, in vacation, that the sheriff is interested in the suit, related to or prejudiced against any party thereto, or in any wise disqualified from acting." The question arises upon this section whether the court is bound to take the affidavit of the party as conclusive proof of the prejudice alleged against the sheriff or not. We think not. The court has some discretion in the matter, implied from the requirement that the court shall direct the process to the coroner, "when it shall appear to the court" that the sheriff is prejudiced as alleged. Can we say that it did so appear to the court? No testimony was offered to prove the alleged prejudice of the sheriff. A case might be presented of an abuse of the discretion given to the court in this matter which would justify a reversal of its judgment; but such abuse does not appear in this case.

Nor did the court err in excluding from the panel of jurors those who declared on their voir dire that they would not convict one of murder on circumstantial evidence alone. Two trials of this cause, in one of which there was a hung jury, disclosed that the testimony against the accused was exclusively circumstantial, and to admit such men upon the panel would have been trifling with justice. This question was considered in State v. West, 69 Mo. 401, and we see no reason for departing from the rule there announced. There is no complaint that a panel of forty competent jurors was not obtained.

Counsel for defendant cites Wharton's Criminal Evidence in support of the proposition that the court erred in admitting experts to testify to the condition in which the body of Mrs Leabo was found on the second post mortem, held December 28, eight days after the first was made, and without notice to defendant. Mr. Wharton says: "The practice has been to receive for what it is worth" such testimony, but suggests that "whenever notice of such observations to the opposing interests is practicable such notice should be given." Section 421. The manner in which the examination is made affects...